The Supreme Court has just announced that it will hear two cases from Texas that could establish critical precedents in the administration of the death penalty in America.

One revolves around questions of racial bias, and the other addresses the treatment of intellectually disabled prisoners in the legal system. While the outcome of these cases may be complicated by the fact that the Supreme Court is still missing a justice, the court’s decision to review them reflects a growing interest in tackling the death penalty.

Just last month, the court ruled in another case that racial bias had tainted a defendant’s fair trial. Thirty years after his conviction, the man is finally free to pursue a new trial  and one that will hopefully include an actual jury of his peers. The two new cases will probe more deeply into the nuances of the death penalty, which is still legal in 31 states.

The first case involves Bobby Moore, an intellectually disabled man who was found guilty of shooting a convenience store clerk and sentenced to death in 1980. He’s spent the ensuing 36 years in limbo on death row.

Moore’s attorneys argue that the state is applying an incorrect — and outdated — rubric for assessing his fitness for the death penalty. After all, the Supreme Court has already ruled that executing people with intellectual disabilities constitutes cruel and unusual punishment. They assert that were Moore to be reevaluated today, he would be found incompetent.

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They also asked the court to take on the fact that Moore sat in prison for nearly 40 years without a resolution — especially given that he spent roughly half that time isolated in solitary confinement.

While the court originally agreed to hear that aspect of the case, it later reversed the decision — though several justices have said that the issue of solitary confinement should be considered in the court in the near future.

In the second case, that of Duane Buck, the court will address another question of racial bias. In Buck’s sentencing phase, psychologist Dr. Walter Quijano was asked to testify with respect to Buck’s “future dangerousness.” The following exchange between the witness and the prosecution illustrates why the case has been brought to the Supreme Court:

“You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons. Is that correct?”

“Yes.”

In Texas, where future dangerousness is a consideration in whether someone can be sentenced to death, testimony like this makes the difference between life and death for a defendant. Blatantly stating that an offender is more likely to reoffend because of his gender and race is clearly discriminatory — or at least, that’s what Buck’s attorneys hope to prove before the Supreme Court.

By accepting death penalty cases, the court indicates that it may consider increasing the restrictions on eligibility for the death penalty.

While some cases are clearly miscarriages of justice, they can also be used to establish precedents that will narrow instances in which the death penalty is legal. Justices like Ruth Bader Ginsburg have made comments in the past that suggest they’re also interested in exploring the constitutionality of the death penalty itself — a move that could have a profound impact on American jurisprudence.

States across the country may reconsider whether they wish to apply the the death penalty, but a Supreme Court ruling could abolish the practice entirely, as it did very briefly in 1972.

s.e. smith is a writer, agitator and commentator based in Northern California, with a journalistic focus on social issues, particularly gender, prison reform, disability rights, environmental justice, queerness, class and the intersections thereof, with a special interest in rural subjects.

smith delights in amplifying the voices of those who are often silenced and challenging dominant ideas about justice, equality and liberation. International publication credits include work for the Sydney Morning Herald, the Guardian and AlterNet, among many other news outlets and magazines.

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